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Our Politiical Form, According to Publius

As a people we presently undertake another effort in our common duty to regulate our polity. I would , over the course of a few posts, like to re-examine what that polity is thought to be, and how we regulate it. Publius (James Madison, in Federalist Papers #39), discusses our republican federal form:

If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.

On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.

Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.

Sometimes I wonder whether we ought not restore a _form_ of “nobility”, not in the sense of creating familial rights and claims which pass on from father to son, but in a different sense, of setting up as a source of moral recognition those who (near the end of life) have (a) lived always fully upright lives, (b) have committed much of their lives to the nation’s welfare, either as soldiers or otherwise in pursuit of goods not private, and (c) are visibly men of good judgment, either wisdom, or prudence, or both. This need not be any bestowal of any form of political authority, by the way, just a public recognition “this is what we mean by excellence in citizenry.” Setting aside the difficulty of preserving such a plan from political shenanigans (which are grave), maybe part of the reason we go on electing men like Blagojevich is that we don’t have a PUBLIC standard for what excellence means. All that aside, Madison’s meaning is clear: we don’t have hereditary forms of authority, which would be contrary to republicanism.

The next issue taken is the federal form. Against the objection that they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States., Publius answers as follows:

First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act…. that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it,

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society.

With respect to operation (as distinct from source), Madison indicates a more national result, but not wholly so:

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features.

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

So in some respects we are a national form, but in most respects a republican federal polity.

Comments (7)

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society.

Several steps have been taken since those comments were written to move us toward a more national, less federal form of government:
The seventeenth amendment, which changed the way the Senate is chosen, was one step.
The fourteenth amendment which limited state sovereignty was another.
And now there is serious talk about doing away with the electoral college.

If that happens, then all elections would be popular elections and the statement above would read:

The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The executive power will derive its powers from the people of America; and the people will be represented without regard to states at all. So the government is completely NATIONAL, not FEDERAL.

Chucky, you're right, these changes have moved us toward more of a national form of government. In the case of the 14th, the movement is mostly due to court decisions about the 14th, and how far it applies, rather than the inherent meaning of the amendment on it own. As such, the changes can be reversed by new judicial rulings and legislative action. Several of us here have lamented the bad judicial history of the 14th.

In the case of the 17th, I don't know the history behind it, but my suspicion is that the states were not finding that having the state legislators elect the senators was doing anything effective for preserving states' prerogatives and powers. There is needed a much more powerful mechanism for doing that - which is why I have a proposed amendment that would make up for the deficiencies in the checks between states and the federal government: If 60% of the states vote to say some act (administrative, legislative, or judicial) of the federal government exceeds the authority that resides in the federal government granted by the states, then the act is voided.

I like your idea. I think anything that decentralizes power will be an overall good for the country.

As for the reasons behind the 17th amendment, I think it had to do with abuses and corruption. I think the amendment may have been an overreaction though. I think the current calls for the abolishment of the electoral college are of a similar vein - people who don't understand the original intent (to assure smaller states a voice in national elections) are looking at what they see as deficiencies (the winner of the popular vote is not elected) and not realizing the overall consequences of what they're calling for.

In the case of the 14th, the movement is mostly due to court decisions about the 14th, and how far it applies, rather than the inherent meaning of the amendment on it own. As such, the changes can be reversed by new judicial rulings and legislative action. Several of us here have lamented the bad judicial history of the 14th.

The 14th amendment, the general welfare clause and the 2nd amendment were poorly written and conducive to legalistic manipulation. In the case of the latter two, that is particularly egregious because so many of our founding fathers were lawyers and thus should have had the wisdom to anticipate how they might be manipulated by unscrupulous men (ie, at least most of their profession).

Incorporation actually makes sense as the most effective way to actually enforce the 14th amendment. The only problem is that the Bill of Rights was not written in a way that anticipated incorporation. Thus the first amendment has become a tool of local tyranny even as it is a tool of national liberty.

As for the reasons behind the 17th amendment, I think it had to do with abuses and corruption.

Actually, no.

It had to do with Progressive "democracy" mongering; it was the same imperitive that leads the Democrats to propose eliminating the Electoral College -- they believed (as their heirs do today) that they could endlessly manipulate and control "the masses", therefore, they were/are all for supplanting the actual US Constitution with "democracy".

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